New York City Housing Authority v. Velazquez

OPINION OF THE COURT Memorandum. Final judgment affirmed without costs. We affirm the final judgment for the reasons stated by this court in New York City Hous. Auth. v Williams (179 Misc 2d 822) and by the Appellate Term, First Department, in New York City Hous. Auth. v McClinton (184 Misc 2d 818). As noted in these decisions, pursuant to the federal consent decrees, the claim that a tenant is ineligible for continued occupancy is determined by the Housing Authority, and its determination is subject to review only in a CPLR article 78 proceeding (see, New York City Hous. Auth. v Clemente, NYLJ, Sept. 23, 1994, at 21, col 4 [App Term, 1st Dept]; New York City Hous. Auth. v Thoms, NYLJ, June 17, 1993, at 23, col 4 [App Term, 1st Dept]). The ensuing holdover proceeding is predicated only on a 30-day notice, and it is not an element of the Housing Authority’s proof in the holdover proceeding to establish that there has been a breach of the lease. Thus, the proceeding is not “based upon a claim that the tenant or lessee has breached a provision of the lease” (RPAPL 753 [4]; cf., Lufkin v Drago, 126 Misc 2d 177, affd 129 Misc 2d 1108 [RPAPL 753 (4) is inapplicable to nonprimary residence holdover proceedings, which are predicated on a ground for nonrenewal and not upon a “breach” of the lease]). Contrary to the view of the dissenting justices in McClinton and Williams, our holding in Fairbanks Gardens Co. v Gandhi (168 Misc 2d 128, affd 244 AD2d 315 [failure to sign renewal lease deemed breach of a lease obligation]) does not require a different result. In the case of a failure to sign a renewal lease, the adjudication of whether there has been a “breach” is made in the holdover proceeding. Here, as noted, the adjudication of tenant’s ineligibility for continued occupancy is made following a full evidentiary hearing by the agency and is reviewable only in an article 78 proceeding. The adoption of a broad interpretation of RPAPL 753 (4) in these circumstances would permit the Civil Court to grant a cure period and to reinstate a tenancy where the agency’s determination that the tenant is no longer [17] eligible for continued occupancy has been upheld by the Supreme Court and/or the Appellate Division. The fact that the instant tenant did not avail herself of the existing avenue of review (e.g., Matter of Williams v Franco, 262 AD2d 45; Matter of Powell v Franco, 257 AD2d 509; Matter of Spand v Franco, 242 AD2d 210; Matter of Turner v Franco, 237 AD2d 225) does not warrant the judicial expansion of RPAPL 753 (4).